Sixth Circuit Reverses Employer’s Summary Judgment in Mixed Motive Race Case Where Employer Sought Racial Balance in Terminations

On Wednesday, the Sixth Circuit reversed summary judgment for a Detroit casino on the grounds that terminating a white female supervisor because a black female supervisor had been recently fired -- even though other black male supervisors had not been terminated in similar circumstances – was sufficient evidence of unlawful discrimination to survive summary judgment. Ondricko v. MGM Grand Detroit, LLC. , No. 10-2133 (6^th Cir. 8-8-12). In that case, the plaintiff was terminated for violating a casino rule regarding shuffling decks at a blackjack table. There was evidence that a black female supervisor was fired for a violation of the same rule, but black male supervisors had only been suspended. In addition, when the Vice President was questioned why a black male supervisor had only been suspended when the plaintiff was fired for violating the same rule and informed that the attorneys for the terminated black female supervisor had called, the Vice President attempted to factually distinguished the situations and then said he did not want to fire her, but "how can I keep the white girl?"

To begin, the Court agreed that the plaintiff had asserted a mixed-motive theory of discrimination. A mixed-motive analysis applies to cases "where an adverse employment decision was the product of a mixture of legitimate and illegitimate motives." As long as the plaintiff shows that unlawful discrimination was the motivating factor in her termination, she can prevail under Title VII.

The Vice President's comment about "how can I keep the white girl?" constituted direct evidence of discrimination – in that it showed that the plaintiff's race was a factor in his decision to terminate her instead of suspending her. As explained by the Court:

This statement was made by an MGM decisionmaker shortly before notifying [the plaintiff] of her termination, immediately after discussing inquiries by a fired black female employee's attorney, and in the same meeting where MGM's decision not to fire a black male for similar conduct is discussed. Under these circumstances, and in light of the fact that Boyd had a much worse disciplinary record than [the plaintiff], it is certainly reasonable to conclude from O'Connor's statement that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to shuffling.

The plaintiff was also able to sufficiently question the employer's justification because her situation was factually comparable to – and even less egregious than -- those of supervisors who were not fired for violating the same rule. The employer attempted to explain that not all shuffle infractions deserved to be treated the same, but could "not point to any established policy, either written or verbally communicated to its employees, that distinguishes between different shuffle-related misconduct and provides the corresponding levels of discipline."

 Moreover, the plaintiff had a clean disciplinary record before the shuffle infraction while some of the suspended black male supervisors did not. As for circumstantial evidence of gender discrimination, the plaintiff showed "that seven Supervisors were disciplined for involvement in improper shuffling procedures: five were men, four of whom were suspended for five or fewer days. In contrast, both women were terminated for their involvement in "bad shuffles." The one remaining man, Swick, was fired about eight months after MGM fired [plaintiff] and shortly before she filed the" lawsuit. "[G]iven the four similarly situated male employees who were not terminated based on similar conduct, MGM cannot defeat the inference of a discriminatory motive with one comparator who was treated similarly."


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